As the Supreme Court begins a new term, 44% of Americans would counsel the justices to base their decisions “strictly upon what is written in the Constitution and legal precedents.” A Rasmussen Reports national telephone survey found that 38% say the Court’s decisions should be primarily guided by a sense of fairness and justice rather than strict constructionism.

Exactly what “fairness” and “justice” are and who defines them are, of course, left unstated. Which is precisely what’s wrong with a jurisprudence that pretends it can ignore the text of the Constitution and impose whatever values a particular Justice might see fit when interpreting what is supposed to be the governing document of the United States.

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http://www.orderhotlunch.com Jeff Molby

::Sigh::

Bob

I’m not sure what to make of that poll, either the question was asked in convoluted way and the respondents were confused or our school system is more screwed up than I thought. Our opponents have certainly done a good job of educating the people. Any suggestions on how we can undo the damage?

Nick

You know, a “strict” interpretation of the Constitution would rarely be a problem if we were more willing to amend it, as the founders intended… Ha, just realized the slight irony there.:)

http://www.no-treason.com Joshua Holmes

If the Constitution prescribes an injustice, should the Justices follow it?

Bob

Are you saying that the justices should just do whatever they think would be fair or just no matter what the law says? So you’d be OK with a court that ruled: “Gee, you don’t have a legal leg to stand on but we feel sorry for you so we’re going to rule in your favor.” So much for this being a land where the law is supreme.
Where does this stop? If the law isn’t supreme what is? Human emotion? How far are we from allowing the court to put rulings up for auction?

Chris Kachouroff

Nick,

The Constitution doesn’t require a “strict” interpretation. In fact, the interpretation is at times required to be “broad”.

We need someone who acknowledges a true construction where such is required. In most cases, it is not. Would you agree?

:::Sigh:::

Jeff Molby

We need someone who acknowledges a true construction where such is required.

Were you able to say that with a straight face, Chris? :-)

Everyone thinks their own construction is “true”. You should know that words are only meaningful if we all stick to the actual definitions at the time of their writing. If those meanings become burdensome for whatever, we get together and amend the document as appropriate.

http://www.no-treason.com Joshua Holmes

Are you saying that the justices should just do whatever they think would be fair or just no matter what the law says?

Correct. The Court should not enforce an unjust law, regardless of what the Constitution or anyone else says.

http://sixtystoryrobot.blogspot.com James Andrix

The constitution is not an end, it is a means. As a means, it has several ends. One of its stated ends is to ‘establish justice’. Rights are not granted by the constitution, but some are recognized by it explicitly.

If the constitution fails to bring justice, or to recognize a right, the courts still have a responsibility to be just, because justice is the goal, not legalism.

http://en.wikipedia.org/wiki/Jury_nullification js290

Correct. The Court should not enforce an unjust law, regardless of what the Constitution or anyone else says.

Jury nullification is one way of attacking unjust laws. But it doesn’t preclude the courts from saying, “We won’t enforce this.” And when the law is unjust, that’s exactly what they should do.

Bob

At the original trial I’m in favor of jury nullification. But I don’t want the Supreme Court practicing it. If the Supreme Court is going to use fairness as its guiding light and not the law who’s sense of fairness should they use, theirs, the public at large, or the voting public’s? If a law is unjust we should demand its repeal, but I don’t want a country that is ruled by the judge’s sense of fairness instead of the law. If the judge’s sense of fairness is supreme we are no longer a republic but instead a judicial dictatorship.
I can’t help but notice that on a site where most people seem to support Ron Paul there isn’t overwhelming support for the Constitution. This isn’t good news for the Constitution or the Paul campaign.

http://www.no-treason.com Joshua Holmes

If the Supreme Court is going to use fairness as its guiding light and not the law who’s sense of fairness should they use, theirs, the public at large, or the voting public’s?

They can’t use anyone’s but their own. Although you think this is a “judicial dictatorship”, it’s the same process that gave us the common law of property, tort, contract, and crime. I would put that record against the entire history of legislatures.

Bob

So if the Supreme Court issued a ruling that it would be fair for Bush to have a third term that would be fine with you. You also think it would be fine if the court ruled that since we’re at war fairness dictates that Bush should not have to go through the distraction of an election. NO THANKS, I’ll take a strictly interpeted constitution. If laws or the Constitution need to be changed let’s change them through the legislative process not by the unpredictable whim of the court.

militant

any ‘interpretation’ of the constitution should be undertaken through the lens of history and language, taking careful note of the contemporaneous usage of the words. this is according to jefferson in his warnings on america’s future. examples abound, such as the word ‘militia’ in the 2nd amendment – militia when it was written meant any/all able-bodied males between certain ages who could take up arms in mutual community or state defense. so yeah, we ARE allowed to keep weapons. too bad, brady bill gun grabbers.

what this means is, a strict constructionist reading is the only truly appropriate approach to take, according to the advice of the men who wrote the document. these men were like politicians today, in that they knew the importance of being very exacting with regard to language. therefore it is only reasonable to read the words as they were originally written.

for those who will say the constitution is deficient, i remind you that there is a legitimate amendment process which is deliberately slow and cautious and difficult, to ensure that our country has the time to carefully weigh any changes to the framework.

Chepe Noyon

I prefer that the judiciary rely on a strict interpretation of the Constitution, but my use of the term “strict” is a little different from others. A good example is the term “cruel and unusual punishment”. Back in 1789, the death penalty was considered to be neither cruel nor unusual. However, our culture today has more refined sensibilities and the death penalty is arguably — NOTE I WRITE ‘ARGUABLY’! — interpretable as cruel and unusual punishment. I’m not saying that it IS cruel and unusual punishment, but that a Supreme Court justice could, in my opinion, interpret the phrase in that manner and I would not object on grounds of strict interpretation.

The real problem here is that we as a nation are too chicken to amend the Constitution. For example,we should amend the Constitution to address the abortion issue rather than rely on strained legal interpretations — but we don’t have the political courage to hammer out a compromise that people are willing to live with.

I think we should also pass an amendment dealing with campaign spending and the two-party system, and another one dealing with gerrymandering.

I’ll take up the issue of gun control in that thread.

http://sixtystoryrobot.blogspot.com James Andrix

I support the Constitution. I clicked through to here based on your headline “Only 44% Of Americans Believe The Supreme Court Should Follow The Constitution” I thought that was horribly low, and of course the Supreme court should follow the Constitution.

Then I saw that it was put up against justice. The Constitution is wonderful, but it is not infallible. It has been unjust in the past, it is probably unjust now. If a court upholds an injustice simply because that is what is written, then it has become an evil automaton.

The Constitution specifies who ultimately decides what is just: men appointed by the president and approved by the senate. If we cannot trust that process to select men fit to make these choices, then there is no hope anyway.